Monday, June 25, 2007

What about the forensics?

Comments by a forensic pathologist to the Abolish list:

"That Doctor DeVore is trying to sell junk science to the jury. His opinion here is not based on fact, not based on personal observation, and not even based on a valid set of statistics. Given the estimate of a fetal age is based on several parameters such as weight (not possible here), length (probably not possible here) and ossification centers (that may be possible, but with a wide variation), all estimates have to be iffy. Each fetus grows at a different rate; for example, my second son was born at about six month's gestation, weighed just under 1 kilogram but was 55 cm long. Other fetuses can also display anomalous parameters.

Where did this "expert" come up with the conclusion that he use an "average" of two or three estimates, and come up with a conclusion to even a reasonable medical possibility (note that the law requires a "reasonable medical certainty" in most states, and a reasonable medical "probability" in other states) in all medical opinions. If California follows Daubert, his testimony would be laughed out of court. It would be hard to accept even under FRE section 700 and following.

The prosecution here must be desperate to try to get in such raunchy evidence. As it stands now, we will never know who killed Ms Peterson unless there is a confession. First the Simpson case, now this circus; what has happened to the courts in California?"

G M Larkin MD


Abolish Archives

"Read Hicks v Oklahoma, 447 US 3 - Conviction cannot be based on conjecture alone.

The people do not have
  1. a place of death (the indictment may come from the wrong jurisdiction);
  2. a cause of death ("maybe she was strangled";
  3. a time of death ("maybe December 24th".
  4. a weapon of death ("maybe this or maybe that."
They cannot prove the corpus delicti in the fetus's death, or make a reasoned estimate of how mature the fetus was.

The state did not allow a highly competent forensic pathologist to testify for the defense, a pathologist who would seriously challenge both the fetus and whether it had an independent existence.

While the state does not have to prove motive, Mr Peterson's raunchy affair and demeanor doesn't make him a murderer; he was convicted on moral grounds rather than evidence.

If I remember correctly, circumstantial evidence is a powerful tool -- if there is no other plausible reason to explain an occurrence. If the explanation favors the defence, the jury MUST determine it for the defense -- the so-called Sanhedrin Rule, or the Golden thread.

This points to "reasonable doubt"; a commodity too often lost is our court today. With regard to your question, could it be that the jury reached a compromise -- guilty, but with a life sentence?

The judge's firing two jury members the way he did is also a wee bit questionable; could they both be holding out for acquittal?

I agree with you that there was no evidence linking Peterson to the crime, and insufficiency of evidence will loom large in an appeal. Having not read the transcript, there might be other errors to work with.

Today, forensic evidence must be rigorously analyzed and challenged on virtually every word.

The determination of whether the fetus/baby breathed is certainly open to challenge, and it is possible that no conclusion can be made, even with the most sophisticated tests.

Again reasonable doubt. I do not know if Peterson is de facto guilty or not: the people have not proven it to my satisfaction."


Forensic Pathologist

Abolish Archives

Here is a summary of Daubert:


The Daubert Supreme Court decision suggests four questions that judges should consider in determining whether an area or field of science is reliable enough to be used in the courtroom. The decision says this list should not be regarded by judges as "a definitive checklist or test," opening the door for judges to employ criteria of their own.
  1. Is the evidence based on a testable theory or technique?
  2. Has the theory or technique been peer reviewed?
  3. Does the technique have a known error rate and standards controlling its operation?
  4. Is the underlying science generally accepted?
What, of the evidence offered in Scott's case, qualified under these rules?

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